Debate over the Stop Online Piracy Act has already hit full throttle, but I’ll leave that for another day.

Today I want to “walk through” the bill so that readers and creators know exactly what is in it and what to expect if it passes. I’ve tried to keep the legalese to a minimum here. This is not meant to be a comprehensive look at every bit and piece of the bill, but hopefully I’ve hit all the major points.

If you look at the text of the bill, you’ll notice that there are several sections I haven’t mentioned below — provisions that increase criminal penalties for trafficking in inherently dangerous counterfeit goods, for example. I don’t mean to suggest these aren’t as important as the ones directly related to copyright enforcement.

Attorney General actions against foreign infringing sites

The first section of the bill applies only to foreign infringing sites — sites where the domain name is not registered within the US. The Attorney General may commence an action under this section if one of these sites is directed at the US (meaning it is used by US users, and the owner of the site would be subject to personal jurisdiction in a traditional infringement lawsuit), the owner of the site is committing or facilitating a criminal copyright offense, and the site would be subject to seizure if it were a domestic site (like the domains seized by ICE over the past year).

This suit would then be filed against the site operator personally. If the operator cannot be found or doesn’t live in the US, the Attorney General may file an in rem action against the site itself. The statute also details how notice of the suit must be served.

Once begun, the AG files for a temporary restraining order, a preliminary injunction, or a permanent injunction against the site, ordering it to stop its infringing activites. A court would issue these injunctions under the same rules that govern every federal lawsuit — with both parties presenting their case (except in the case of a temporary restraining order, which can be issued ex parte but is limited to 14 days) and the injunction issuing only if the AG meets its burden. A preliminary injunction, for example, requires establishing likelihood of success on the merits and irreparable harm (among other factors).

The AG can then, after approval by the court, serve court orders on specified entities, requiring specified actions by each entity. In all cases, the entities are only required to take “technically feasible and reasonable measures” to comply with the orders.

(1) An online service provider must prevent access by its subscribers to the infringing site, including preventing the domain name from resolving to the site’s IP address. The service provider is not required to modify its “network, software, system, or facilities” in order to do this, and its DMCA safe harbors are not affected.

(2) A search engine must prevent the infringing site from being served as “a direct hypertext link”.

(3) A payment network provider must prevent or suspend transactions between US customers and the infringing site from completing. The payment network provider has no continuing duty to monitor transactions after it has taken these steps.

(4) An Internet advertising service is required to prevent providing advertising services to or relating to the infringing site. Like payment network providers there is no continuing duty to monitor once the advertising service has put its measures into place.

That’s it.

What happens if one of the entities above doesn’t comply with the order? The AG can bring an action for an injunction against the provider to order it to comply. 1Under this section, the AG can also bring an action for injunctive relief prohibiting any entity that has knowingly and willingly offered a product or service designed or marketed for circumventing the measures taken by the above entities. The failure to comply must be knowing and willing, and this injunctive relief is the only legal remedy available here. 2A failure to comply with any injuction issued may result in contempt of court.

In addition, in this action, entities are given a defense against failure to comply if they can show they do “not have the technical means to comply with this subsection without incurring an unreasonable economic burden.”

Finally, any of the above individuals and entities may move to modify or vacate the orders at any time after they are issued. The court may grant this relief if it finds that the site at issue has stopped, or never was, infringing, or if “the interests of justice otherwise require” it.

DMCA 2.0

This next section borrows the notice-and-takedown procedure of the DMCA and applies it to preventing profit from piracy.

Both foreign and domestic US-directed sites are subject to this section, but only if they are “dedicated to theft of US property.” The section defines this as either (1) a site that “is primarily designed or operated for the purpose of, has only limited purpose or use other than, or is marketed by its operator or another acting in concert with that operator for use in, offering goods or services in a manner that engages in, enables, or facilitates” copyright infringement or circumvention of technological measures; or, (2) a site where the operator has either remained willfully blind to a high probability of infringing acts occuring on the site or induced infringement through the site.

A copyright holder that has been harmed by one of these sites may serve a notice on payment network providers or Internet advertising providers that service the site. When a provider receives a notice, it is required to take the same technically feasible and reasonable measures described in the first section or reply with a counter-notification disputing the notice. As with the DMCA, copyright holders are liable for any monetary damages that may occur if they knowingly and materially misrepresent that a site is dedicated to the theft of US property.

If a provider serves a counter-notification or fails to comply with a notice under this section, the copyright holder can initiate an action very similar to the one the Attorney General can initiate under the first section of the bill. Court orders in this section are limited to the advertising and payment providers involved.

Commercial Streaming

To be convicted for criminal copyright infringement, the government must prove beyond a reasonable doubt that the defendant acted willfully. Most courts have interpreted willfulness strictly: an intentional violation of a known legal duty. But a small number of courts have instead adopted a lower standard: the intent to do the acts at issue without knowledge that they constituted infringement. 3Prosecuting IP Crimes Manual. The lower standard has caused some worry, especially when it comes to criminal copyright statutes applied to online infringement.

SOPA takes care of this. It says:

Any person acting with a good faith reasonable basis in law to believe that the person’s conduct is lawful shall not be considered to have acted willfully for purposes of the amendments made by this section. Such person includes, but is not limited to, a person engaged in conduct forming the basis of a bona fide commercial dispute over the scope of existence of a contract or license governing such conduct where such person has a reasonable basis in law to believe that such conduct is noninfringing. Nothing in this subsection shall affect the application or interpretation of the willfulness requirement in any other provision of civil or criminal law.

The bill offers a lot to digest, and I’ll be sure to have more analysis in the coming weeks. My initial thoughts: this is a well-crafted bill, providing effective remedies against the narrow problem of rogue sites. Anyone who makes a living creating knows it’s impossible to stop all piracy — that’s been true since the beginning of copyright — but at the very least, our laws should be able to reliably prevent individuals and companies from profiting off of online piracy. And this bill promises to be a big step in that direction.

The House Judiciary Committee is scheduled to hold a hearing on the Stop Online Piracy Act on November 16, 2011.

Under this section, the AG can also bring an action for injunctive relief prohibiting any entity that has knowingly and willingly offered a product or service designed or marketed for circumventing the measures taken by the above entities.

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A failure to comply with any injuction issued may result in contempt of court.

It seems as if all the talking heads do not understand the legislative process. It is a bill that has been presented by some members of the House, one that just like all ofhter bills initially presented is immediately referred to the cognizant committee(s).

Those voicing such indignation would do well to bone up on just how a bill moves through the process. Most never make it out of committee. Those that do are inevitably redlined significantly, and even if it does leave the committee yet another round of amendments are inevitable.

Reading blather on the net one would almost think this bill is sitting on the President’s desk awaiting signature. Far, far, far from it.

‘Bout time/long overdue…
Yes, bills do play ping-pong before ever being voted on.. but this/these have been brewing for a while now, it shouldn’t be too long before we’ll have an answer.
You can tell as the propaganda machine of the Google/EFF’s of the world are in full bore. You might want to sell your Google stock at this time…

Such a strange comment from Kent. I have never been, nor would I ever be a “piracy apologist.” I find such claims to be offensive.

Separately, my trip to DC was planned weeks ago. That Lamar Smith introduced the bill while I was in flight, simply represented excellent timing, as it made it a good chance for me to sit down with many members of Congress and explain how poorly drafted the bill is.

Terry’s claim that this is “well-drafted” is somewhat odd. Even he appears to recognize how poorly drafted it is in that he chooses to not use the language in the actual bill to discuss things like the mandate to proactively filter content. To claim that this deals with “the narrow problem of rogue sites” is also strange. A narrowly crafted bill would not impact nearly every site on the internet, as the current draft would. It would not overturn over a decade of established secondary liability law. It would not have been dropped without getting input on the innovation industry. It is extremely poorly drafted and the consequences of the bill are far reaching. Pretending otherwise is odd. I respect Terry, but that claim is simply laughable.

There are ways to deal with infringement. This doesn’t do that. This seeks to overturn the way secondary liability has worked for quite some time. And it won’t do anything to actually stop the “rogue sites” it pretends to target. It’s really an amazingly bad bill, in that it actually makes PROTECT IP look reasonable in comparison. Of course, that’s part of the point. But even the folks in Congress who are supporting this bill recognize that it’s poorly drafted and needs to be fixed. Amazing that Terry would claim otherwise. He can at least admit that the drafting is problematic, even if we would disagree on the changes necessary.

Let’s accentuate the positive. Mike Masnick believes ‘there are ways to deal with infringement’. I must have missed that edition. Presumably the headline was ‘Holy Grail Discovered!’ But for the benefit of myself and others who missed the news, what ‘ways to deal with infringement’ does he support?

Let’s accentuate the positive. Mike Masnick believes ‘there are ways to deal with infringement’. I must have missed that edition. Presumably the headline was ‘Holy Grail Discovered!’ But for the benefit of myself and others who missed the news, what ‘ways to deal with infringement’ does he support?

In fairness, Mike’s method for dealing with piracy is to embrace it and to adapt your business model to work with it. Connecting with fans and giving them a reason to buy–that’s not bad advice (though it is sort of obvious). What I don’t get though is why he’s so opposed to anyone who doesn’t want to embrace piracy in that way. Nor do I get why he seems to assume that that business model will work for everyone–it won’t. If he’s helping people by getting them to work with the pirates, then good for him and good for them. But his hostility towards those who simply want to sell their valuable property to others without embracing those who rip them off makes no sense to me. Why is so incredibly against anyone enforcing their IP rights? I just don’t get it. It’s like he thinks his alternative business model is the only one that should be used by anyone, and anyone who dares not to use it just isn’t adapting and is bringing the piracy onto themselves. Talk about narcissism.

Such a strange comment from Kent. I have never been, nor would I ever be a “piracy apologist.” I find such claims to be offensive.

That’s pretty much all you are, from what I can tell. It’s amusing that you deny it.

Let’s take a recent example with NinjaVideo. Rather than call an obvious pirate a pirate and admonish them for breaking the law (like a person who was actually anti-piracy would do), you dig deep into the copyright FUD barrel and claim that: (1) what they did shouldn’t even be a crime, and (2) you doubt that they actually took in a half million dollars, even though they admitted they did (and even though you have no basis for thinking otherwise). That is the textbook definition of piracy-apology.

And you pump out stuff like that every single day. I’ve yet to see one single article of yours out of the hundreds I’ve read on the subject of piracy where you didn’t take a pro-piracy stance. The thought that Techdirt isn’t an anti-copyright, pro-piracy website is laughable. Good grief, just look at how the pirates flock to your comments section. Your core fan base is a bunch of pirates–and you love it!

Ha! Good one. In my mind, when someone says “piracy apologist” I immediately think of the name “Mike Masnick.” I think of others too like Lessig, Falkvinge, Doctorow, etc. But for day in, day out, hardcore piracy apology, Techdirt takes top billing. I find the reporting at TorrentFreak to be less biased. And that’s saying something.

I’ve often wondered whether Mike really believes that he’s not a piracy apologist, or whether he’s lying and manipulating when he claims he’s not. I’d like to think it’s the former, but given how smart he is (second in his class at Cornell!) I have trouble believing that. It’s probably some combination of the two, I suppose.

It would not have been dropped without getting input on the innovation industry.

Innovation industry?

Jesus wept…

And trying to deny your achieved status as a piracy apologist is just…odd. A “rose by any other name” and all that. I’m reminded of modern KKK members saying they aren’t racist they’re just “pro-white” or for a slightly less hyperbolic example, Rick Santorum claiming to not be homophobic after 1) equating gay marriage with bestiality 2) pledging to reinstate don’t ask, don’t tell 3) saying it’s common sense that gay couples shouldn’t be able to adopt children 4) saying gay couples don’t deserve the same governmental benefits that heterosexual couples do…”but I’m no homophobe!”

Or as Terry himself put it:

“He hasn’t explicitly come out as being against copyright, but if you follow his site, he’s come out against so many aspects of copyright doctrine that it’s extremely difficult to see what’s left that he would support. For example, he argues that even uncompensated commercial use of creative works is fine.http://www.gearslutz.com/board/5913421-post4.html

Who do you think you’re fooling?

Having never stood behind a pulpit, digital or otherwise, and roundly declared your 100% unwavering support for piracy means absolutely nothing. Trying to rely on that fact is a shameless display of political side-stepping right out of “How to Bullshit” handbook. It’s a completely transparent, politician-worthy cop-out. One need only take a casual browse through your various blog posts to easily see beyond any shadow’s shadow of a doubt that you are a copyright-hating, piracy-apologizing, unabashed Silicon Valley shill tirelessly kowtowing to their parasitic agenda with all the spittle flying, jowl jiggling zeal of a southern preacher.

“The Mas” coming onto Copyhype and pretending to be offended by the notion that anyone could think he’s a piracy apologist instantly goes into my favorite all-time internet moments ever. Perhaps it is a personality disorder, like Kent suggested–I’m having trouble understanding it otherwise. You can only imagine the rationalizations that must be going though his head that let him even post such nonsense. And you guys have nailed it: Just because he doesn’t explicitly say “I love piracy” doesn’t mean that you can’t infer it beyond a reasonable doubt.

The only reason he won’t admit it is because deep down he’s ashamed of it, knows it will marginalize him even more than he already has become, and just further contribute to everyone’s impression of him as a zealot.

The only reason he won’t admit it is because deep down he’s ashamed of it, knows it will marginalize him even more than he already has become, and just further contribute to everyone’s impression of him as a zealot.

If it really is a personality disorder, then it’s probably not about shame–part of those kinds of disorders is the inability to feel ashamed like a normal person does. I agree, though, that it’s probably about the fear of being further marginalized. If he just came right out said what he (so obviously to anyone with an IQ above snail) believes about piracy, he wouldn’t be taken seriously by anyone. By lying about it, he’s able to maintain some bit of credibility that he can use to manipulate others. Makes sense to me.

Mike has a point. To use the word “narrow” in describing this bill is incomprehensible.

a site that “is primarily designed or operated for the purpose of, has only limited purpose or use other than, or is marketed by its operator or another acting in concert with that operator for use in, offering goods or services in a manner that engages in, enables, or facilitates” copyright infringement or circumvention of technological measures

This clearly encompasses many existing and imaginable sites engaging solely in speech acts. If this bill were passed, a site set up to discuss the use of copyright protection measures worldwide, the technical operation of those measures and the means by which those measures could be circumvented, would clearly risk takedown. That is a broad attack on free speech. If the bill intends to narrowly target those who profit from “stealing US property”, why does it not do so?

or, (2) a site where the operator has either remained willfully blind to a high probability of infringing acts occuring on the site or induced infringement through the site

This wording is firstly incomplete: what are we to make of a site whose operator is not willfully blind to such a probability, but perfectly well aware of it, and rightfully considers it none of its business? Secondly, it clearly encompasses many existing and imaginable sites providing general purpose file hosting and transfer services.

Yes, if one sets up any facility for people to exchange data, many of those people will inevitably use it to share unlicensed copyright materials. Such is life. The difficulty and expense of monitoring such a service for the transmission of copyright content is both disproportionate to the difficulty and expense of operating it without such monitoring, and contrary to the natural goal of providing a simple and open facility for all comers.

The mail, whoever carries it, is not monitored for sedition; the internet should not be monitored for infringement.

“This clearly encompasses many existing and imaginable sites engaging solely in speech acts. If this bill were passed, a site set up to discuss the use of copyright protection measures worldwide, the technical operation of those measures and the means by which those measures could be circumvented, would clearly risk takedown. That is a broad attack on free speech. If the bill intends to narrowly target those who profit from “stealing US property”, why does it not do so?”

That’s just utter BS!
In NO way does this bill attack Free Speech, and the example you gave is ludicrous, not to mention intentionally misleading. To give it further credit by discussion would be as pointless as you trying to suckle your own wee-wee…

“This wording is firstly incomplete: what are we to make of a site whose operator is not willfully blind to such a probability, but perfectly well aware of it, and rightfully considers it none of its business?”

If you actually comprehend the English language.. that’s EXACTLY who the Bill is targeting…
my God, where do these people go to school?

About

Copyhype provides news and info on current developments relating to copyright law, the media industries, and the digital economy. It cuts through the hype to bring reasoned discussion aimed at both legal and nonlegal audiences.

Terry Hart is currently VP Legal Policy and Copyright Counsel at the Copyright Alliance. Any opinions expressed on this site remain his own and not necessarily those of his present or any past employers.